Q: My brother died a week ago, and I was listed as a reference to be allowed into his apartment. I have cleaned it out and collected his belongings. I want to ask the landlord if my brother's security deposit could be released to a family member. Is that a possibility?
A: In Minnesota, a tenant's lease can be terminated when the tenant dies. Either you or the tenant's estate is legally allowed to give two months' written notice to terminate the lease, regardless of how long the lease runs. Your brother's estate would also owe two months more in rent payments, even though he has died, unless his lease was month-to-month or the lease states otherwise. If his lease is month-to-month or states that only one month's written notice is required to terminate it, then the estate needs to pay only one month's rent. You should first read his lease to see if it had expired and he was now on a month-to-month lease. Check with his landlord if you don't have a copy of the lease. Most landlords would know to send you his security deposit within 21 days of receiving written notice to end your brother's lease, minus any money that is owed for damages beyond ordinary wear and tear, past rent or other money owed, such as a utility bill. In your written notice to terminate your brother's lease you should include the executor's contact information, so the landlord can mail any remaining security deposit to the appropriate person. Just be aware that there may not be any funds left from your brother's security deposit after paying his rent for one or two months. Also, the landlord's claim is against the tenant's estate only, which means if your brother passed without assets, but owes more in back rent than his security deposit is worth, the landlord will not be able to collect, since the estate has no money. The landlord cannot come after relatives or friends to pay your brother's debt.
Pre-lease deposit
Q: I had an agreement to move into an apartment complex in downtown Minneapolis on Nov. 5. I informed the manager that I would not be moving in. I never signed a lease, but I paid $650 in advance, $300 for the application fee and $350 for a damage deposit. Despite never moving in, the complex won't return my damage deposit.
A: In Minnesota, the apartment complex is allowed to keep your applicant-screening fee of $300, which is used to conduct a background check on prospective tenants, but must notify you by phone or in writing within 14 days if they are going to reject your application, along with identifying the reasons. Since your application wasn't rejected, but you told them you wouldn't be moving in, the apartment complex is allowed to keep your application fee of $300, based on the agreement in writing, unless the language in your agreement states otherwise. Your $350 damage deposit, however, also may be considered a pre-lease deposit to hold an apartment, which is money prospective tenants pay to hold the apartment while their application is being reviewed. If the landlord and prospective tenant do enter into a rental agreement, then that pre-lease deposit must be applied to the tenant's security deposit or rent.
You should review the language in your pre-lease agreement, because for it to be effective it needs to be a conspicuously written agreement including at least one reason that your money will be returned to you. The agreement must also state that you, the prospective tenant, will receive the money within seven days of that occurrence. The landlord doesn't have to state conditions for keeping the pre-lease deposit. However, most landlords do list those conditions in order to prevent confusion. Here's an example of a legal clause: "If the landlord approves the prospective tenant, but the tenant decides not to take the apartment, the landlord may keep the pre-lease deposit. But, if the landlord denies the prospective tenant, the landlord will return the pre-lease deposit to the tenant in seven days." For the landlord to comply with state law, they must use the correct language in the pre-lease deposit agreement.
After review of your agreement and you confirm the landlord didn't use the right language, you should mention state law to the landlord and let them know that they didn't follow it so they need to return your $350 damage deposit. If, after that, the landlord refuses to return your damage deposit, you can sue in conciliation court for 150% of the $350 the landlord collected, which would be $525, since the tenant is entitled to the deposit plus one-half that amount as a penalty.
Kelly Klein is a Minneapolis attorney. Participation in this column does not create an attorney/client relationship with Klein. Do not rely on advice in this column for legal opinions. Consult an attorney regarding your particular issues. E-mail renting questions to kklein@kleinpa.com, or write to Kelly Klein c/o Star Tribune, 650 3rd Av. S., Minneapolis, MN 55488. Information provided by readers is not confidential.
